The Court on Conventions

Shameless self-promotion for my latest academic article

In academia if not so much elsewhere, the sesquicentennial of Confederation is being used an occasion for some retrospectives on Canada’s constitutional development that go back further than what Ian Holloway ironically calls the “year zero” of 1982. One such retrospective was a very successful conference organized by Matthew Harrington that was held at the Université de Montréal a couple of weeks ago; another, not coincidentally, is a book/special issue of the Supreme Court Law Review edited by prof. Harrington. The book consists of chapters by various Canadian academics examining specific areas of the Supreme Court’s jurisprudence in the realms of constitutional structure, individual rights, and private law.

My own contribution deals with constitutional conventions. In a nutshell, it is a review of the Court’s engagement with constitutional conventions, from the 1930s and into the early 21st century ― I don’t discuss the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, because that discussion would have required a separate, and longer, paper. (That paper is what I presented at the UdeM conference; I hope to have it ready for submission soon enough.) I do review some of the scholarly responses to that jurisprudence, and reiterate my own view that the Court’s take on conventions is misguided and should be revisited. Here is the abstract:

Conventions are among the most important rules of the Canadian constitution. Yet orthodox legal theory does not recognize them as being rules of law, a view which the Supreme Court of Canada endorsed in the Patriation Reference. Nevertheless, both before and after the Patriation Reference, the Court’s jurisprudence engaged with existing or alleged constitutional conventions. This article reviews this jurisprudence, and the scholarly commentary that responded to it. It concludes that the Court’s endorsement of the orthodox view that there exists a rigid separation between conventions and law was poorly justified, and ought to be abandoned.

The paper is available on SSRN. As Lawrence Solum says, download it while it’s hot!

No Money for You

Can Saskatchewan fund non-Catholic students in Catholic schools? Raising government ire, a court says no.

A couple of weeks ago, in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, Saskatchewan’s Court of Queen’s Bench held that provincial funding for non-Catholic students of Catholic “separate” schools in the  province was unconstitutional. Saskatchewan’s government is upset, and has proclaimed its intention to invoke the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms to nullify the effects of this decision. In this post, I will summarize the decision and briefly explain why I think it is correct. I will comment on the use of the Charter‘s override provision separately.

The constitution requires Saskatchewan to allow the formation of, and to provide equal funding for “separate” schools for Catholics and Protestants, whenever one of these two groups happens to be a minority in a given school district and if parents belonging to the minority group request it. The mechanics of this requirement are somewhat complex: section 17 of the Saskatchewan Act, 1905, which created the province from the North-West Territories, makes applicable to it a somewhat modified version of section 93 of the Constitution Act, 1867, which guarantee “right[s] or privilege[s] with respect to separate schools which any class of persons ha[d in 1905]” under the then-existing territorial law. Laws enacted in furtherance of this guarantee are constitutional and not subject to scrutiny under the Charter, because its enactment did not abrogate the guarantee. Any other provincial laws relative to education, including the “separate” schools, are subject to Charter scrutiny like all other legislation in Canada.

The case was a challenge by a public school board to the funding received by a Catholic one for non-Catholic students attending one of its schools. If this funding were not available, the students would have attended a school operated by the plaintiff, and the funding would have followed them there. The case raised two main questions. Is the funding of non-Catholic students attending Catholic “separate” schools part of the guaranteed rights or privileges? If not, is it contrary to the Charter? There were a couple of preliminary issues too: whether the plaintiffs had standing to sue, and whether the school at the centre of the proceedings, St Theodore, was a legitimate “separate” school despite the fact that most of its students were not Catholic. Justice Layh answered both of these questions in the affirmative, and I will say no more of them. The decision is 230 pages long, not too much of it superfluous. I will only focus on the key points here.

 

Justice Layh found that there was no constitutionally guaranteed right for a “separate” Catholic school board to receive public funding for educating non-Catholic students. Only “denominational aspects” of the “separate” schools were constitutionally protected from legislative interference. The aim of the guarantee was to preserve minority religious communities by allowing them to withdraw their children from the majority’s schools and so to avoid assimilation. Moreover, at the time of the guarantee’s entrenchment, Catholics viewed education jointly with non-Catholics with great suspicions, and while constitutional interpretation had to account for new social realities ― notably the fact that Catholics and protestants were no longer the only religious groups of any significance in Canada, making special protections for them anomalies ― it could not import theological developments, such as Catholicism’s greater openness to other religions ― that occurred since the Saskatchewan Act came into force.

As a result, the ability to educate non-Catholics could not be viewed as a “denominational aspect” of the functioning of Catholic schools; it was not essential to their functioning as Catholic institutions. Therefore it was not constitutionally protected. Nor did the requirement of non-discriminatory funding for “separate” schools extend to funding students from outside the religious community for which they were set up. The funding requirement served to protect the distinctive religious character of the schools, not the ability of outsiders to attend them. In short, the provision of funding of which the plaintiffs complained was not a constitutional requirement, but a legislative choice of the province.

This area of the law is quite complicated, and I cannot claim particular expertise on it. To me, however, Justice Layh’s reasons are largely persuasive. It will not come as a surprise to regular readers that I am very skeptical about his take on the role of social change in constitutional interpretation, as I might further explain in a future post, if time permits. But I do not think that this is material here. Justice Layh makes a compelling case about the originalist raison d’être of the constitutional protections for “separate” schools being to allow minority communities to stand on their own, and about there being no legal right to funding for non-Catholic students in 1905. A purely originalist analysis would not, I think, yield conclusions different from his.

Having concluded that the funding of non-Catholic students was not exempt from Charter scrutiny, Justice Layh turned to the plaintiff’s claims that it infringed the constitutional guarantees of freedom of religion and equality. Part of the respondents’ case on this point was that the plaintiff, not being a natural person, was not entitled to make such claims, since only individuals could hold religious beliefs or claim equality rights under section 15 of the Charter. Justice Layh dismissed this argument. In his view, although only an individual could claim that a generally neutral law had a disproportionate or discriminatory effect on him or her, anyone could argue that a legislative measure was unconstitutional on its face, as the plaintiff here was doing. I find this distinction dubious; once the plaintiff is granted standing to sue in the public interest, shouldn’t it be able to advance constitutional claims on behalf of others? Isn’t that the point of public interest standing? But nothing turns on this here.

Justice Layh found that funding non-Catholic students in Catholic schools ― and, importantly, not funding, say, non-Muslim students in Muslim schools or non-Jewish students in Jewish schools ― amounted a breach of the state’s duty of religious neutrality and to discrimination on the basis of religion. Neutrality means treating all religious groups equally, as well as not favouring religion over non-religion or vice versa. Providing money to Catholic schools so that they can educate non-Catholics, instructing them in Catholicism and thus “evangelizing” them, as well as creating goodwill in the community, without providing equivalent opportunities to other religious groups is not acting impartially, and is thus a breach of the Charter‘s religious freedom guarantee as explained, notably in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 (which I explained and discussed here). It is also, ipso facto, discriminatory. I think this is correct, and quite obviously so. There is no meaningful account of religious neutrality on which singling out one group for a favourable treatment denied others is permissible.

There remained the question of a possible justification of these infringements of Charter rights under section 1, as limitations “demonstrably justified in a free and democratic society”. Justice Layh found that no such demonstration had been carried out. Indeed, the provincial government had not even really attempted one. The defendant school division, for its part, argued that funding Catholic schools for students outside of their faith served to provide educational opportunities to all students, and choice to the parents. Justice Layh rejected these objectives, on the basis that they had nothing to do with the limitation of funding of non-denominational students (if I can be forgive this use of the term) to Catholic schools. Public schools could provide educational opportunities, while the objective of enhancing choice could not be advanced by an inherently discriminatory policy. While these objections seem to me to go to the “rational connection” stage of the section 1 test rather than to invalidate the objectives themselves, nothing turns on this. The objections themselves are well taken, and Justice Layh’s conclusion, correct.

In the result, Justice Layh declares that Saskatchewan’s legislative and regulatory provisions allowing funding of non-Catholic students in Catholic “separate” schools is unconstitutional. He adds that “[a]ppreciating that the implementation of this declaration will cause significant repercussions in the province, this declaration is stayed until June 30, 2018.” [476] The stay, I think, is self-evidently appropriate here, and this case should be kept in mind in any future discussions of suspended declarations of unconstitutionality.

As it works its way up the judicial hierarchy, Good Spirit School Division could also produce important rulings on the constitutional issues it addresses ― and I hope that appellate courts will pay attention to Justice Layh’s reasons, which strike me ― despite some reservations ― as generally very careful, well-argued, and perhaps above all lucid. But all of that is likely to be overshadowed by debates about the Saskatchewan government’s invocation of the “notwithstanding clause” to annul Justice Layh’s decision. I hope to say more on that in short order.

New Year, New Look

For 2017, Double Aspect has a new look and a new address

This is just a quick note to let my readers know that I’ve given the blog’s look an update. Nothing crazy, but I hope that it looks better than it did before ― or at any rate that it looks reasonably well. If you have any concerns please let me know.

In addition, the blog now has a new URL ― doubleaspect.blog. You don’t actually need to update your bookmarks, as you’ll be automatically redirected to the new address even if you go to the old one, but if you want to save yourself that fraction of a second, then go ahead.

I don’t suppose my posts were much missed during the holidays, which I hope were happy for all. But now that that’s over, I will resume normal blogging in short order. Happy 2017, everyone!

#Clawbies2016

My nominations for this year’s Clawbies, and some other recommendations

December in the Southern hemisphere means that summer, not winter, is around the corner, and while the Santa Parade and Christmas trees are all there, they mostly provoke cognitive dissonance in those of us used to their being accompanied by snow (or grumblings about the lack thereof). That, and also concerns about Santa and his reindeer suffering a heatstroke. (On the plus side, I suppose there is no danger of getting burned in a chimney.) One holiday tradition that is not so weather-bound (though it will still be upended ― by the time difference that is; by the time the results come it, it will very much be 2017 in New Zealand) is that of the Clawbies ― the Canadian legal blogosphere’s yearly dose of self-congratulation.

We are about half-way through the nomination period, and some people, to whom I am very grateful, have been kind enough to put a word in for Double Aspect. It’s time for me to make my own suggestions. To be clear, by nominating some blogs and not others, I am not suggesting that these blogs are in some objective, absolute way “better” than others. What I am saying is that I like them, and think they deserve attention from readers and recognition from the Clawbies’ judges. Plenty of others do too, but the Clawbies’ rules say we are limited to three nominations, but the truth of the matter is that picking only three is pretty much mission impossible. So I will also bend the rules a bit, and make a few recommendations ― blogs I do not formally (and in some case am not permitted to) nominate, but which I still think should get considered for (and indeed win) some Clawbie or other.

Indeed, I will start with a recommendation, because it is for a blog that I could, and perhaps should, have nominated: Paul Daly’s Administrative Law Matters, last year’s big winner. Having nominated his blog repeatedly, I hope prof. Daly will forgive me for taking a break this time. I am pretty sure I will be nominating him again very soon, and indeed he would be a richly deserving winner again this time.

So for my actual nominations:

  1. The Université de Sherbrooke’s Law Faculty blog, À qui de droit: I mentioned it last year as a possible future nominee, and here it is. Sherbrooke’s response to Calgary’s ABlawg and the University of Alberta Faculty of Law Blog doesn’t (yet) have the former’s Clawbies-winning pedigree or the latter’s record of placing its contributors on the Supreme Court, but it is the best such collective effort east of the 110th meridian.
  2. Édith Guilhermont’s Juris Blogging: last year, I described Dr. Guilhermont’s as “the tireless apostle of legal blogging in Québec (although, ironically, not yet a blogger herself ― nudge nudge!)”; now, fortunately, the main part of this description is even more true, while the parenthetical no longer is. Juris Blogging is, so far as I know, the only blog devoted to law blogs in Canada. This may seem insular, but if Dr. Guilhermont is right that, for an increasing number of lawyers, blogs will be a supplement to, and even a substitute for, traditional legal scholarship, then she will be describing an increasingly important component of the legal culture and practice.
  3. Lisa Silver’s Ideablawg: Prof. Silver’s probing reflections on difficult issues in the criminal law are a must read for anyone interested in the subject. To my lasting regret, I didn’t care one bit for criminal law as a student, and avoided classes in it except for the compulsory one; Ideablawg helps me make up for the resulting ignorance, and I am grateful to its author for this! Thrice a Clawbie runner-up, it’s time Ideablawg were a winner already.

And here’s another recommendation, for a blog that I cannot nominate because I occasionally contribute to it (which reminds me that I’m overdue on my next installment): that of the CBA’s National Magazine. Its variety of subjects, contributors, and perspectives is pretty unique in the Canadian blawgosphere.

Finally, I thought I’d mention a couple of bloggers from my new home, New Zealand, which has more to teach Canadians about matters constitutional than we tend to suspect. One is Edward Willis, whose blog offers some very thoughtful takes on constitutional law and theory; the other is Andrew Geddis, whose posts on Pundit are always interesting, and will often highlight to Canadian readers the remarkable similarity of the issues faced in our two countries.

Passing Observations

Some thoughts on writing exams, from a guy who just graded 240 of them

As I’ve mentioned in previous posts, I recently graded (or, as we say in New Zealand, marked) more than 240 exam papers (or scripts). So I thought I’d volunteer some observations, in case any students who might be reading this are looking for tips. Of course, much of what follows will feel intuitive to many, and perhaps to most. The art of answering exam questions is not especially difficult to master. But there are, I can now tell, more than a few people who really could use some advice before they sit another final. (Whether they read my blog is a different question, admittedly.)

By way of introduction, let me say something of which students don’t think (I know: it’s not very long ago that I was a student myself!). A student writes only four or five exams, at most, at the end of a semester, but an instructor has many dozen, and possibly (as in my case) several hundred of them to read. This means that I only have a few minutes to devote to each script. (Ever complained about the marking taking too long? I know I have. But if it had to be done faster, that would mean even less time to look at your answers!) If I don’t know what you are saying ― whether that’s because your answers are poorly structured or even because your handwriting is atrocious ― I’m not going to spend a lot of time figuring it out. If you want me to understand you, it’s your job to make sure I do.

And beyond that, it’s in your self-interest to make sure that I… how to put this nicely… don’t get too worked up while reading your answer. Sorry as I am to say this, when reading the answer to the same question two hundred times over, it is unfortunately easy to find small things aggravating. I know one should not get aggravated, and I try not to. But still, don’t give me reasons to become annoyed. Try to spell correctly ― especially when you are writing my name on the exam booklet. (Seriously. I’ve seen my name spelled a couple dozen different ways, though the best one was the student who wrote my last name as Sinatra.) Try to punctuate sensibly ― instead of just randomly strewing periods all over your answers, or at the end of each line. Try to use proper syntax. In particular, ensure that your sentences have subjects and conjugated verbs, and that they are not just subordinate clauses floating around without anything to attach them to. (Of all the annoying things I’ve seen, this one is perhaps the most bizarre.) If your writing tone is formal, don’t be pretentious; if it is conversational, don’t be familiar. Oh, and please, don’t make unfunny jokes. Keep in mind that if you feel the need explain your joke, it’s probably not funny. And when in doubt about whether a joke you want to make is funny, abstain.

This all goes to the form of your answers. Let’s now turn to the content. The single most important thing is also the simplest one: answer the question you are asked! I will at least try to overlook those annoying periods all over the place, ignore ignorance of apostrophes, and put those free-floating subordinate clauses down to the stress of the exam room; but I can’t pretend that you are answering the question when you are not. In particular, if the question is a descriptive one, asking you what the law on a certain point is, don’t answer it as if it were a normative one, asking you what the law ought to be. And if the question asks you for a prediction about the consequences of a development in the law, don’t answer by explaining why this development ought not to, or will not, happen. That’s just not what I want to see, and as a result, your grade for that question will not be one that you want to see.

Another general point is that you won’t get very far by simply spewing the notes you took in class, and a fortiori the notes that I provided, right back at me. For the most part, doing this just shows that you have no idea what you are talking about and are throwing the proverbial kitchen sink at me. The same goes, of course, for keywords from my Powerpoint slides inserted into answers regardless of relevance. A related point is that if the exam is wholly or partly open book, you shouldn’t just print out your entire notes for the semester. Prepare an aide-mémoire that synthesizes what you’ve learned ― it will help you study, and finding things during the exam will be much easier than rummaging through a semester’s worth of notes. The one I used for the first year contracts exam, for a full-year class, was all of seven pages long, in size 12 font. It’s perfectly doable if you put in the effort. And of course, “putting in the effort” means actually understanding the material, enabling you to show the instructor that you have understood ― which is precisely what he or she wants to see.

Some more specific issues now. Perhaps the most important one is that you need to distinguish what is and what ought to be. This is one of the most important things in legal education, and it’s a safe bet that most instructors try to get you to do this, and want to see you do it on an exam. So don’t assume that things are necessarily right the way they are, and don’t assume that things were necessarily wrong in the past, when they were not as today. Don’t assume that judges always act as they are supposed to ― they are only human beings, prone to error and susceptible to the corrupting effects of power, especially to the desire to increase the power of courts at the expense of other institutions. But don’t assume that Parliaments and governments are always looking out for the public good, either. Don’t assume that they are all always wrong, or corrupt, or evil, of course. Judge each case on its own merits, and don’t forget that there is a decent chance that, if you are being asked a question, the answer to it is not altogether clear-cut or obvious. Pay attention to the context of your answer, perhaps especially on problem questions: if you are asked to write a memo for a client, it is probably not helpful to launch into philosophical disquisitions, or discussions of Roman law. Whatever the question, however, avoid making pompous general statements, which are invariably untrue and almost as invariably irrelevant (these include, for example, declarations that something has been done “throughout history” or needs to be done “in every country”). Last but not least, know your stuff! Don’t confuse Governor-General and Attorney-General. Don’t represent a concurring or a dissenting judgment as that of the court (even if I focused on that particular judgment in class). And don’t bring up a case to illustrate the application of a common law rule developed or a statute enacted years after that case was decided (in other words, know when the cases we studied were decided).

Contrary to what some students think, it’s actually a lot more fun for an instructor to give good grades than bad ones. It’s certainly more fun for me. But that doesn’t mean I’ll do it without good reason. I’m happy to interpret borderline cases favourably to you ― but not to pretend that your work is better than it really is. Do it well, and we’ll both be happy. Good luck!

St-Hilaire on Parliamentary Privilege

I have been completely snowed under, despite the coming Southern hemisphere summer ― or perhaps because of it, since coming summer means end of the semester, and end of the semester means exams to grade (or to mark, as we say around here). 243 exam papers (or scripts, in Kiwi), to be precise, in my Constitutional Law class (or paper). This is very nearly done, and I hope to resume blogging by the end of the week. In the meantime, my friend, and occasional guest here, Maxime St-Hilaire, will entertain us with a post on parliamentary privilege, cross-posted from the Université de Sherbrooke’s blog, À qui de droit. I am looking forward to it!

Selfie Slow-Down

I have already blogged about one American judicial decision on the constitutionality of a “ballot selfie” ban, which has since been upheld on appeal by the Court of Appeals for the 1st Circuit. And I have also written about the history of the secret ballot, which in my view explains why measures to protect ballot secrecy ― including bans on something that might at first glance appear quite innocuous, like a selfie showing for whom a person has voted ― are actually more important than they seem. Another American decision issued last week, this one by the Court of Appeals for the 6th Circuit, provides some additional food for thought on this issue.

Much of the discussion in Judge Sutton’s majority opinion in Crookston v Johnson is procedural. The case came up as an application for a preliminary injunction preventing the enforcement of Michigan’s prohibition on “exposing marked ballots to others”, (1) and Judge Sutton concludes that it is simply too late to grant one now in anticipation of the elections to be held on November 8. The people who will be running the election have already been trained and have received specific guidance on photography at the polling stations. Changing the rules at this point would create unnecessary confusion. So Judge Sutton does not rule on the merits of the case, which will be assessed later, assuming the applicant still cares. (This situation is reminiscent of the Canadian cases about election debates, which are invariably brought on an emergency basis when the debates are set up, and invariably abandoned before a full merits hearing once the election has taken place.)

But Judge Sutton does make some comments that bear on the merits of the dispute, and, although preliminary, these comments strike me as quite sensible and interesting. One observation is that

many Michigan voting stalls … are simply tall desks, placed next to each other, with three short dividers shielding the writing surface from view. In this setting, posing for a ballot selfie could compromise the secrecy of another’s ballot, distract other voters, and force a poll worker to intervene. (4)

My memory of Canadian voting stalls is a bit hazy ― I skipped the last election because I couldn’t tell which of the parties was worst ― but something like that might be true of them too. And indeed, even if it is not in any given case, it is worth thinking about whether our voting arrangements must actually be planned so as to cater to the “needs” of people wishing to snap a selfie.

Another practical point is that allowing ballot selfies could create a “risk of delay” at the polling stations, “as ballot-selfie takers try to capture the marked ballot and face in one frame—all while trying to catch the perfect smile”. (5) In a brief concurrence focusing entirely on the issue of delay, Judge Guy makes the additional point that “with digital photography, if you don’t like the way you look in the first one, you take another and so on ad infinitum.” (7) He wonders, too, whether “the allowance of taking a selfie also include use of the ubiquitous selfie stick”. (7)

And then, there are the issues that I have already discussed here ― whether the absence of evidence of ballot selfies’ harm shows that there is no reason for banning them or, on the contrary, demonstrates the effectiveness of the bans as a prophylactic measure. Judge Sutton clearly thinks that the latter is the case. Moreover, “[t]he links between [voter corruption and intimidation] and the prohibition on ballot exposure are not some historical accident; they are ‘common sense'”. (5, quoting US Supreme Court precedent.) Chief Judge Cole, dissenting, takes the contrary view, as have other American courts that have addressed selfie bans.

For own part, without expressing an opinion as to which of these views is correct as a matter of U.S. law, I have more sympathy for Judge Sutton’s. While I have been dwelling on the importance of evidence in constitutional adjudication for some time now, and critical of restricting rights on the basis of assumptions no later than yesterday, the evidence is actually there, albeit that it is mostly historical. Moreover, a court should be able to pronounce on the issue of delay without waiting for an “experiment” to take place. Common sense can be an unreliable guide to adjudication, but ― absent evidence to the contrary ― courts should be able to rely on it sometimes.

Prohibitions of ballot selfies might seem counter-intuitive or even quaint. In the United States, they run counter to the very strong tradition of virtually untrammelled freedom of expression. While I sometimes wish that Canadians took more inspiration from that tradition than they do (for example when it comes to the criminalization of “hate speech”), this is one instance where a more even-handed weighing of competing interests might be in order. Judges Sutton and Guy provide a useful reminder of what some of these interests are.